A Procedural Due Process Claim Based On The Random Conduct Of A State Actor Must Allege That Post-Deprivation Remedies Are Inadequate
LEAVELL v. ILLINOIS DEPARTMENT OF NATURAL RESOURCES (April 6, 2010)
Eva Leavell and her family own or lease hundreds of oil wells in southern Illinois. Most of the permits are in Ms. Leavell’s name -- but at least one is in the name of her husband, Daniel. Beginning in the year 2000 and continuing for several years, the Illinois Department of Natural Resources conducted a number of hearings to identify abandoned wells that should be plugged. The proceedings resulted in several disputes between the Department and Ms. Leavell, including a state court lawsuit. In 2008, the Department held a similar hearing concerning a well for which Daniel was the permittee. The Department sent a certified letter to Daniel -- but Daniel had already died. No representative was notified and the hearing proceeded. The Department ordered the well plugged. The estate has not challenged that ruling in any administrative or judicial proceeding. Ms. Leavell instead brought a lawsuit as administratrix of his estate, alleging that the Department violated Daniel's procedural due process rights in failing to provide sufficient notice of the 2008 hearing. The district court dismissed on the grounds of issue preclusion, apparently believing that the complaint referred to the same conduct that had already been litigated in state court with respect to the wells for which Ms. Leavell was the permittee. The court also denied Ms. Leavell's motion to reconsider. The court stated that the assertion that Daniel was the permit holder was raised for the first time in the motion to reconsider. Ms. Leavell appeals.
In their opinion, Circuit Judges Ripple and Rovner and District Judge St. Eve affirmed. The Court noted that, after concessions in the briefs and oral argument, the only issue on appeal was whether Leavell stated a due process claim and, if not, whether the dismissal is with or without prejudice. Any procedural due process inquiry requires the identification of the property interest at issue and the necessary process due in connection with the deprivation of that interest. The Court distinguished between procedural due process claims based on established state procedure and those based on the random and unauthorized acts of state actors. With respect to the former, post-deprivation procedures are not necessarily adequate. In those cases, a pre-deprivation hearing may be required. With respect to the latter, however, pre-deprivation hearings are usually impossible because of the inability to predict when the random acts will occur. There, procedural due process requirements are satisfied if the state provides an adequate post-deprivation remedy. Leavell does not assert that the state lacks an adequate notification procedure. Rather, she alleges that a Department employee failed to implement an existing procedure for notifying a permittee of a hearing. Therefore, only a post-deprivation remedy is required. Since she conceded that there are state remedies available and that she has not taken advantage of them, her claim must fail. With respect to whether the dismissal should be with or without prejudice, the Court distinguished between dismissals for failure to exhaust administrative remedies or failure to satisfy a condition precedent and the case before it. Here, Leavell's failure to take advantage of an adequate state court remedy is a failure to allege a necessary element of the cause of action. The claim should be dismissed with prejudice.
